Howard v. Wickham et al
Filing
48
ORDER - Respondents' motion to dismiss (ECF No. 29 ) is DENIED. Petitioner's motion for discovery (ECF No. 34 ) is DENIED. Respondents shall file an answer to the amended petition (ECF No. 21 ) by 6/10/2019. Reply due 30 days from service of the answer. Signed by Judge Howard D. McKibben on 4/11/2019. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LAMONT HOWARD,
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Petitioner,
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v.
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HAROLD WICKHAM, et al.
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Respondents.
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_________________________________ )
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This
counseled
habeas
petition
3:16-cv-00665-HDM-VPC
ORDER
comes
before
the
court
on
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respondents’ motion to dismiss the petition as untimely.1 (ECF No.
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29). Petitioner has opposed (ECF No. 43), and respondents have replied
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(ECF No. 47). Petitioner argues that he is entitled to equitable
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tolling and has moved for discovery related to that claim. (ECF No.
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34). Respondents have opposed (ECF No. 38), and petitioner has replied
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(ECF No. 41).
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Petitioner challenges his 2011 state court conviction for sexual
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assault, kidnapping in the first degree, attempted sexual assault, and
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two counts of battery with intent to commit sexual assault.
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56).2
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Petitioner thereafter filed a state postconviction petition for habeas
(Ex.
The Nevada Supreme Court affirmed on direct appeal. (Ex. 80).
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Although the motion also sought to dismiss Ground 1 as unexhausted,
respondents withdraw the argument in their reply.
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The exhibits cited in this order, comprising the relevant state court
record, are located at ECF Nos. 30-33.
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corpus relief.
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petitioner in those proceedings, and Mr. Story filed a supplemental
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petition on petitioner’s behalf.
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court denied relief, the Nevada Supreme Court affirmed. (Exs. 99 &
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111).
(Ex. 83). Robert Story was appointed to represent
(Exs. 85 & 89).
After the trial
Remittitur issued on April 12, 2016. (Ex. 112).
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Mr. Story retired from practice in 2016 – his petition to resign
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from the bar was filed on March 24, 2016, and granted on September 12,
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2016.
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to indicate that Mr. Story ever moved to withdraw from petitioner’s
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(ECF No. 9 at 31 & 34; ECF No. 44 at 5-7).
There is nothing
case or advised petitioner of his retirement.
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On May 11, 2016, petitioner sent a letter to the Nevada Supreme
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Court indicating that he had been unable to contact his attorney
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because his phone number had changed without notice, and that he would
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like to know the “status” of his case. (ECF No. 9 at 17). In response,
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the Nevada Supreme Court sent petitioner a copy of the docket sheet,
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showing that an order of affirmance had issued in his appeal. (ECF NO.
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9 at 18-19). The docket sheet was printed out on May 19, 2016. (Id.)
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There is no evidence to indicate that the court sent petitioner any
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further information, including the order of affirmance.
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On May 24, 2016, petitioner signed a motion to withdraw counsel
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and for transfer of his case file, which was received by the trial
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court on June 3, 2016, and granted on June 28, 2016.
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8-14).
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(ECF No. 9 at
On August 11, 2016, petitioner wrote a letter, which was received
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by the trial court on August 17, 2016.
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letter, petitioner indicated that Mr. Story had not yet complied with
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the court’s order directing him to transfer petitioner’s case file.
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(Id.)
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(ECF No. 9 at 15-16).
In that
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On September 14, 2016, petitioner filed a motion for contempt
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with the state court, indicating that Mr. Story had still failed to
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provide him with his case file. (ECF No. 9 at 21-24).
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petitioner asserted that Mr. Story never communicated with him after
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filing the postconviction notice of appeal, would not accept or
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respond to any of petitioner’s letters or phone calls, and that his
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phone number and address changed without notice. Petitioner asserted
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that Mr. Story never informed him that the Nevada Supreme Court had
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decided his appeal or issued remittitur and that petitioner has “never
In the motion,
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received any copy of said order or remittitur.” (Id.)
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a response filed September 23, 2016, indicated that on information and
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belief, Mr. Story was no longer practicing in Nevada and had in fact
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left the United States with no plan to return. (Id. at 26).
The State, in
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Petitioner thereafter, on or about November 14, 2016, filed his
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federal habeas petition, which respondents now move to dismiss as
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untimely.
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The
Antiterrorism
and
Effective
Death
Penalty
Act
of
1996
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(“AEDPA”) established a one-year period of limitations for federal
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habeas petitions filed by state prisoners.
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period begins to run after the date on which the judgment challenged
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became final by the conclusion of direct review or the expiration of
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the time for seeking such direct review, unless it is otherwise tolled
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or subject to delayed accrual. 28 U.S.C. § 2244(d)(1)(A).
The one-year limitation
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As set forth in the court’s prior order, unless otherwise tolled
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or subject to delayed accrual, the deadline for petitioner to file a
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3
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federal petition for writ of habeas corpus was September 29, 2016.3
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(ECF No. 5 at 3). Petitioner filed his federal petition roughly 47
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days later, on or around November 14, 2016.4 Petitioner concedes that
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the petition was filed at least 30 days after September 29, 2016,
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depending on when petitioner mailed his habeas petition, but asserts
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that the limitations period should not have expired by that time due
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to the application of equitable tolling.
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Equitable tolling is appropriate only if the petitioner can show
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that: (1) he has been pursuing his rights diligently, and (2) some
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extraordinary circumstance stood in his way and prevented timely
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filing.
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tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d
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1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger
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equitable tolling is very high, lest the exceptions swallow the rule,”
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Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United
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States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The
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petitioner ultimately has the burden of proof on this “extraordinary
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exclusion.” Id. at 1065. He accordingly must demonstrate a causal
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relationship between the extraordinary circumstance and the lateness
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of his filing.
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2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061
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(9th Cir. 2007).
Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable
E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.
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The parties generally agree with the court’s calculation, though
respondents assert the statute expired one day earlier. The difference, in
the context of this case, is immaterial.
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As the court previously noted, the petition is dated October 28, 2016,
but the motion for appointment of counsel submitted with it is dated
November 14, 2016. (ECF No. 1-1 & 1-2). The court finds it unnecessary to
determine the exact date the petition was mailed because, as will be
discussed, petitioner is entitled to equitable tolling through the date of
filing the petition, even if it was not filed until November 14, 2016.
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The Ninth Circuit has “adopted the ‘stop clock’ approach to
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analyzing claims for equitable tolling. “[T]he statute-of-limitations
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clock stops running when extraordinary circumstances first arise, but
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the clock resumes running once the extraordinary circumstances have
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ended or when the petitioner ceases to exercise reasonable diligence,
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whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir.
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2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).
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Petitioner asserts he is entitled to equitable tolling based on
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the abandonment by postconviction counsel and his lack of his case
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file.
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“Failure to inform a client that his case has been decided,
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particularly where that decision implicates the client’s ability to
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bring further proceedings and the attorney has committed himself to
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informing his client of such a development, constitutes attorney
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abandonment.” Gibbs v. Legrand, 767 F.3d 879, 886 (9th Cir. 2014); see
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also Maples v. Thomas, 565 U.S. 266, 283 (2012). Further, the complete
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lack of a case file might, under some circumstances, justify equitable
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tolling, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.
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2009); Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002), if “the
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hardship
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extraordinary circumstance that caused” the untimely filing of his
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federal petition. See Waldron-Ramsey, 556 F.3d at 1013.
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caused
by
lack
of
access
to
his
materials
was
an
Petitioner asserts that discovery is necessary to prove his claim
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of abandonment by counsel and lack of his case file.
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court finds that the evidence in the record sufficiently supports the
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petitioner’s claim such that discovery is not necessary. Considering
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the parties’ arguments and the evidence that has been submitted, the
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court finds that the statute of limitations should be equitably tolled
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However, the
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through
the
filing
of
the
pro
se
petition
due
to
Mr.
Story’s
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abandonment of petitioner and petitioner’s lack of access to at least
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part of his case file, including importantly and undisputedly, the
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Nevada Supreme Court’s decision in his postconviction appeal.
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Petitioner’s exhibits demonstrate both Mr. Story’s abandonment
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of petitioner during the pendency of his postconviction appeal and
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petitioner’s diligent efforts to learn the status of his case on his
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own and obtain his case file so he could file his federal petition.
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Respondents do not concede petitioner’s assertion that Mr. Story
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abandoned petitioner but nor do they offer any persuasive argument or
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evidence to counter it. They also offer no evidence or argument in
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support of a contention that petitioner had in his possession, at any
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time before filing the federal petition, a copy of the Nevada Supreme
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Court’s decision in his postconviction appeal. It was not unreasonable
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for petitioner to attempt to obtain a copy of this and the rest of his
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file before submitting his federal habeas petition, which clearly
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caused a delay of at least two months. It is further clear that
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petitioner acted diligently once learning that he was not likely to
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ever obtain his file from Mr. Story, who had left the country.
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prepared and filed his federal habeas petition less than two months
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after learning this information, which the court finds in the context
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of this case to be diligent.
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has
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deadline
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respondents’ arguments against application of equitable tolling in
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this case are not persuasive.
sufficiently
due
to
The court further finds that petitioner
established
the
He
that
extraordinary
he
missed
the
circumstances
federal
he
filing
faced.
The
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As the pro se petition is therefore considered timely and
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respondents do not argue the operative amended petition is untimely
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on any other grounds, i.e., that it does not relate back to the pro
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se petition, the motion to dismiss the amended petition as untimely
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will be denied.
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Turning to petitioner’s motion for discovery, that motion too
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will be denied. Petitioner’s sole basis for seeking discovery is to
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bolster his claim of equitable tolling.
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concluded that petitioner should be given the benefit of equitable
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tolling in this case, there is no reason to allow further discovery
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to support that claim.
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Because the court has
In accordance with the foregoing, IT IS THEREFORE ORDERED that
respondents’ motion to dismiss (ECF No. 29) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for discovery (ECF
No. 34) is DENIED.
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IT IS FURTHER ORDERED that respondents shall file an answer to
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the amended petition within sixty days of the date of this order.
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Petitioner will have thirty days from service of the answer within
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which to file a reply.
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IT IS SO ORDERED.
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DATED: This 11th day of April, 2019.
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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE
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